raiasthafl tax board ajmertaxboard.rajasthan.gov.in/images/pdf/17_616-16.pdf · appeal no. 17 to 20...

Raiasthafl Tax Board Ajmer

M/s Hotel Hillock Pvt. Ltd.,

Mount Abu,

District-SirOhi ...Appellant

VERSUS

Assistant Commissioner,

Anti-Evasion, Pali .....Respondent

Assistant Commissioner,

1. Appeal No. 17/2016/Sirohi




S. Appeal No. 613/2016/Sirohi

Anti-Evasion, Pali Appellant 6. Appeal No. 614/2016/SirOhi

VERSUS i. Appeal No. 615/2016/Sirohi

M/s Hotel Hillock Pvt. Ltd., 8. Appeal No. 616/2016/Sirohi

Mount Abu,

District-Sirohi .. .Respondeflt

L.B.

SHRI V. SRINIVAS, CHAIRMAN

SHRI MADAN LAL MALVIYA, MEMBER

SHRI OMKAR SINGH ASHIVA, MEMBER

Present:

Shri Rajendra Jam, FCA for Assessee

Shri D.P. Ojha, DGA Shri R.K. Ajmera, DGA

Shri Anil Pokharna, DGA

Shri Jameel Zai, DGA Shri Ravindra Kumar, AC AE Pali for Revenue

Shri V.C. Sogani,

Shri O.P. Dosaya,

Shri V.K. Garg,

Shri P.M. Chopra,

Shri Shyam Pareek,

Shri S.K.AsoPa, Advocates Amicus Curie

Dated: 08/06/2018

Appeal No. 17 to 20 / 2016 / SirI Appeal No. 613 to 616/2016/Sirohi

JU NT

1. This larger bench has been constituted in light of the provisions

ascontained in Rule 31(4) the Rajasthan Value Added Tax Rules,

2006 (hereinafter called the 'RVAT Rules') and Clause 7 (1) of

the Rajasthan Tax Board Regulations, 2017 (hereinafter called

the 'Regulations') on a reference received from the learned

Single Bench of the Rajasthan Tax Board relating to

interpretation of Section 2(36) of the Rajasthan Value Added

Tax, 2003 (hereinafter referred as the 'RVAT Act'), as to whether

the Service Tax charged on supply of food and beverages would

form part of the sale price or not. Precisely, the following issue

has been referred to this Larger Bench:-

"Whether the service tax on the supply of foods and

drinks will be the part of the sale price or not and

consequently the VAT will be leviable on the value of

the food including the service tax or on the value of the

food excluding the service tax."

2. While making reference to the Larger Bench, the learned Single

Bench considered the facts in the Appeal No. 2399-

2401/2012/Jodhpur: M/s Marudhar Hotel Pvt. Ltd. Vs Assistant

Commissioner, order dated 25.07.2017, wherein it has been

held that the service tax charged on the presumptive services

rendered in the course of supply of food, shall not form part of

the sale price as defined under section 2(36) of the RVAT Act.

3. Brief facts leading to the present appeals are that the business

premises of the assessee was surveyed by ACTO II, Anti-Evasion,

Pali on 02.09.2014 and found that assessee was collecting

Service Tax as well as the VAT in the invoices of the food and

beverages supplied to its customers. The said enquiry officer

found that as per definition of the 'Sale Price', all the statutory

levies and duties are included but the assessee did not charge

the VAT on service tax component. Accordingly, a case was

AL-- [1, 2 W

Appeal No. 17 to 20 / 2016 / Sirolij Appeal No. 613 to 616/2016/SIrQ!!i

framed for avoidance of tax and the matter was transferred to

Assistant Commissioner, Anti-Evasion, Pall (hereinafter called

the 'Assessing Officer' or 'AO'). The AO after duly hearing the

assessee held that the service tax as charged in the invoices,

shall form part of the sale price as defined u/s 2(36) of the Act

and levied tax, interest and penalty on the deemed turnover

relating to the service tax. Aggrieved of the assessment orders,

the appellants filed the appeals before the appellate authority

who upheld the levy of tax and interest but set aside the

penalty. Aggrieved of the appellate orders, the assessee has

filed these appeals against confirmation of the levy of tax and

interest and the Department has preferred Appeals against

setting aside of the penalty.

4.

Learned authorized representative appearing for the assessee

submits the Service Tax and the VAT are levied under different

entries of the Constitution and service tax is not in domain of

the State Governments, therefore, the State cannot levy VAT on

the service tax as levied in the invoices for supply or sale of the

food and beverages. It was also submitted that the Single Bench

of the Rajasthan Tax Board in Appeal No. 2399/2012/Jodhpur

M/s Marudhar Hotels Pvt. Ltd. V/s AC order dated 25.07.2017,

has laid down the correct law and the same deserves to be

confirmed. He submitted following judgments to support his

argument:

I. Hotel East Park and Anr. Vs Union of India & Ors. (2015) 49 GST 123

(Chhattisgarh HC)

ii. TamilnadU Kalyana MandaPam Assn Vs Union of India & Ors.

(2004) 5 5CC 632

iii. Imagic Creative (P) Ltd Vs CCT & Ors. (2008) 2 5CC 614

iv. Association of Leasing and Financial Service Companies Vs Union of

India (2011) 2 5CC 352

v. M/s Valley Hotels and Resorts Vs CCI (2014) 74 VST 86 (Uttarakhand)

vi. Indian Hotels and Restaurant Association Vs Union of India

(2014) 71 VST 386 (Bombay)

Appeal No. 17 to 20 / 2016 I Sirohi Appeal No. 613 to 616/2016/Sirohi

vii. The Federation of Hotels Restaurant Association of India & Ors. Vs

Union of India. (2016) 94 VST 500 (Delhi)

In light of the above, he submits that the State does not

have powers to levy VAT on the service tax as charged on supply

of food and beverages by restaurants and hotels.

5 Learned Deputy Government Advocate Shri D.P. Ojha submits

that as per definition of the term 'sale price', all the statutory

levies and duties are included in it, therefore, the service tax if

charged in the invoice, shall constitute part of the sale price. Shri

Jameel Zai, DGA submits that the powers of the States to levy

tax on supply of food and beverages has emphatically been

upheld by the Hon'ble Supreme Court, therefore, any statutory

levy be it service tax or any other tax by whatever name called,

shall from part of the sale price and hence taxable under the

RVAT Act.

Apart from the learned authorized representative for the

assessee and the learned Deputy Government Advocates, the

amicus curie Shri V.C. Sogani, Shri O.P. Dosaya, Shri V.K. Pareek

and Shri V.K. Garg, P.M. Chopra, Shyam Pareek and S.K. Asopa

Advocates/Tax practitioners also appeared to assist the Court

and made their submissions too. They were in unison to argue

that the State does not have power to levy VAT on service tax

component because the service tax as levied on services

rendered by the assessee and the levy of tax on services is

exclusive domain of the Union. They further argued that the

constitutional arrangement as well as the various judicial

pronouncements leaves no ambiguity regarding the issue at

hand that the VAT cannot be levied on service tax.

'4

We have carefully heard the learned counsel for the appellants,

learned Deputy Government Advocates and the amicus curies,

and also gone through the judgments of the Hon'ble Courts. The

question for consideration before us relates to as to whether

4


the service tax charged by the assessee in the invoices for supply

of food and beverages would be treated as part of the sale price

for the purpose of levy of VAT, or not?

8. For this, we have to first look at the relevant provisions as

enshrined in the Constitution as well as the State Tax Law.

Legal Background and Legislative History of the provisions relating to

the 46th amendment to the Constitution:

9. Before the 46th amendment to the Constitution, several

judgments by the Hon'ble Supreme Court had come and those

negated powers of the States to levy tax on works contract as

well as the food served in the hotels. In the case of State of

Madras V/s Gannon Dunkerley : AIR 1958 SC 560, the Hon'ble

Supreme Court held that where there is a contract involving sale

of material and provisions of labour which could not be

separated, it would not fall within the definition of sale goods

sinca there was no supply of materials. It was held that the State

Government would not have legislative competence to levy tax

on such transaction.

10. Similarly, on the issue of supply 0f food and drinks ma hotel and

levy of sales tax thereon, the Hon'ble Supreme Court in the case

of State of Himachal Pradesh Vs Associated Hotels of India Ltd.

(1972) 1 SCC 472, while considering a situation where hotels

were providing to their guests both accommodation and food

which was served at fixed hours without there being no

separate charge for the food, held this to be a composite

contract which could not be split up and taxed as one for sale of

goods and another or service in the absence of any intention to

separately sell the food. The transaction was, therefore, held to

be outside he purview of the State sales tax.

11. The issue was re-visited by the Hon'ble Supreme Court in

Northern India Caterers (India) Ltd. V. It. Governor of Delhi


(1989) 2 SCC 163. The Supreme Court examined whether under

the Bengal Finance Sales Tax Act, 1941 the supply of food in a

restaurant was exigible to tax as a sale. The Supreme Court

followed the earlier decision in State of Himachal Pradesh v.

Associated Hotels of India Ltd. (supra) and held that the true

essence of the transaction was service and did not involve a

transfer of the general property in the food supplied. While

disposing off the review petition in this case, the Hon'ble

Supreme Court clarified that where food was supplied in an

eating house or a restaurant and it is established upon the facts

that the substance of the transaction, evidenced by its

dominant object, was the sale of food and the rendering of

services was merely incidental, the transactions would be

exigible to sales tax.

12. To address the problem arisen out of the abovementioned

judgments, the Constitution was amended through the

Constitution (46th Amendment) Act, 1982. Looking into the

above legal background it will be useful to peruse the Statement

of Objection and Reasons (SOR) for the 46th Amendment. Para

8& 9 of the said SOR are reproduced hereunder:

"8. Besides the above mentioned matters, a new

problem has arisen as a result of the decision of the

Supreme Court in Northern India Caterers (India) Ltd. v.

Lt. Governor of Delhi (AIR 1978 SC 1591). States have

been proceeding on the basis that the Associated

Hotels of India case was applicable only to supply of food or drink by a hotelier to a person lodged in the

hotel and that tax was leviable on the sale of foodstuffs

by a restaurant. But over-ruling the decision of the

Delhi High Court, the Supreme Court has held in the

above case that service of meals whether in a hotel or

restaurant does not constitute a sale of food for the

purpose of levy of sales tax but must be regarded as the

rendering of a service in the satisfaction of a human

need or ministering to the bodily want of human

beings. It would not make any difference whether the

Appeal No., 17 to 20 I 2016 / Siroiij Appeal No. 613 to 616/2016/SirQi!i

1 visitor to the restaurant is charged for the meal as a

whole or according to each dish separately.

9. It is, therefore, proposed to suitably amend the

Constitution to include in article 366 a definition of "tax

on the sale or purchase of goods" by inserting a new

clause (29A)..."

13. importantly, in para 13 of the SOR to the 46th Constitution

(Amendment) Act, it has been mentioned that the "proposed

amendments would help in the augmentation of the State

revenues to a considerable extent." The focus was on

ensuring that State sales tax was leviable on supply of food

and drinks even where it was as a part of a composite catering

contract, hitherto declined by the Hon'ble Supreme Court in

the aforesaid judgments. This was the year 1982 and service

tax was not thought of till a decade later. Therefore, it is

difficult to imagine that Parliament had in 1982 at the time of

the 46th Amendment, consciously decided if in future any

portion of the composite contract of a catering contract

would at all be amenable to levy of Union service tax or not.

14.

By the Constitution (Forty-Sixth Amendment) Act, 1982, Clause

(29A) was inserted in Article 366 and the same reads as under:

"(29A) "tax on the sale or purchase of goods" includes-

(a) a tax on the transfer, otherwise than in pursuance of a

contract, of property in any goods for cash, deferred

payment or other valuable consideration;

(b) a tax on the transfer of property in goods (whether as

goods or in some other form) involved in the execution of

a works contract;

(c) a tax on the delivery of goods on hire-purchase or any

system of payment by instalments;

(d) a tax on the transfer of the right to use any goods for any

purpose (whether or not for a specified period) for cash,

deferred payment or other valuable consideration;

(e) a tax on the supply of goods by any unincorporated

association or body of persons to a member thereof for

cash, deferred payment or other valuable consideration;

'J, 7 )~ I


(f) a tax on the supply, by way of or as part of any service

or in any other manner whatsoever, of goods, being

food or any other article for human consumption or any

drink (whether or not intoxicating), where such supply

or service, is for cash, deferred payment or other

valuable consideration;

and such transfer, delivery or supply of any goods shall be

deemed to be a sale of those goods by the person making

the transfer, delivery or supply and a purchase of those

goods by the person to whom such transfer, delivery or

supply is made."

15.

Consistent with the above provisions, the State legislature has

incorporated similar definition in the statute enabling levy of tax

on the sale of food and beverages. The relevant definition of the

term 'sale' as given in Section 2(35) of the Rajasthan Value

Added Tax Act, 2003, is reproduced hereunder:

"(35) "sale" with all its grammatical variations and cognate

expressions means every transfer of property in goods by

one person to another for cash, deferred payment or other

valuable consideration and includes-

(i) a transfer, otherwise than in pursuance of a contract,

of property in goods for cash, deferred payment or

other valuable consideration;

(ii) a transfer of property in goods (whether as goods or in

some other form) involved in the execution of a works

contract;

(iii) any delivery of goods on hire—purchase or other

system of payment by instalments;

(iv) a transfer of the right to use goods for any purpose

(whether or not for a specified period) for cash,

deferred payment or other valuable consideration;

(v) a supply of goods by an unincorporated association or

body of persons to a member thereof for cash,

deferred payment or other valuable consideration; and

(vi) a supply, by way of or as part of any service or in any

other manner whatsoever, of goods, being food or

any other article for human consumption or any drink

(whether or not intoxicating), where such supply is for

cash, deferred payment or other valuable consideration, and such transfer, delivery or supply

31--- ~. 8 , 4d

Appeal No. 17 to 20 / 2016 / Sirohi Appeal No. 613 to 616/2016/Sirohi

shall be deemed to be a sale and the word "purchase"

or "buy" shall be construed accordingly;

Explanation.— Nctwithstaflding anything contained in

this Act, where any goods are sold in packing, the

packing material in such case shall be deemed to have

been sold with the goods;!

16. The learned counsel for the assessee has referred several

judgments and those are discussed here briefly. In the case of

Hotel East Park and Anr. Vs Union of India & Ors. (2015)49 GST

123 (Chhattisgarh), the issue before the Hon'ble Chattisgarh

High Court was: whether any service tax can be charged on a

sale of food and drinks; whether the service is subsumed in sale

of food and drinks in view of the Article 366 (29A)(f); and

whether section 66E(i) of the Finance Act, 1994 is violative of

Article 366 (29A)(f) of the Constitution.

17. In Tamilnadu Kalyana Mandapam Assn. v. Union of India,

(2004) 5 SCC 632 the Supreme Court was considering whether

the imposition of service tax on the services rendered by the

mandap-keepers was intra vires the Constitution.

18. In the case of Imagic Creative Pvt. Ltd. (2008) 2 5CC 614, the

appellant was providing advertisement services and created

original concept and design advertising material for their clients

and design brochures, annual reports etc. the Hon'ble Supreme

Court held that Payments of service tax as also the VAT are

mutually exclusive, therefore, they should be held to be

applicable having regard to the respective parameters of service

tax and the sales tax as envisaged in a composite contract as

contradistinguished from an indivisible contract. It may consist

of different elements providing for attracting different nature of

levy. It is, therefore, difficult to hold that in a case of this nature,

sales tax would be payable on the value of the entire contract;

irrespective of the element of service provided.

L. 9

~v

Appeal No. 17 to 20 / 2016 / Sirohi Appeal No. 613 to 616/2016/Sirohi

19 In Association of Leasing & Financial Service Companies (2011)

2 SCC 352), the Supreme Court has considered the scope of

Article 366(29-A) of the Constitution of India and had formed an

opinion that the first limb of the said Article says that the tax on

sale or purchase of goods includes a tax on transactions

specified in sub-clauses (a) to (f). It was also found that the said

Article is brought in to expand the tax base which stood

narrowed down because of certain judgments of the Court. The

deemed sale is therefore brought into effect as a concept in the

constitutional definition.

20. In the matter of Valley Hotel and Resorts v. CCT (2014) 74 VST

86 (UKD), the Hon'ble Uttarakhand High Court has held that

where element of service so declared and brought under the

service tax vide Government of India notification dated

06.06.2012, no Value Added Tax can be imposed thereon.

21. In the case of Indian Hotels and Restaurant Association Vs

Union of India (2014) 71 VST 386 (Bombay), the issue for

consideration of the Hon'ble Bombay High Court related to

Restaurant service and the Petitioners challenged levy of service

tax on restaurant service, by seeking to declare clause (zzzzv) of

section 65(105) of the Finance Act, 2010 as ultra vires the

Constitution of India. The Hon'ble Bombay High Court held that

the tax on sale of goods involved in the said service can be

levied, does not mean that the service tax cannot be levied on

the service aspect of catering. With respect, this means that

when a restaurant renders to any person a service, the tax on

sale of goods involved in the said service can be levied. That

does not mean that a service tax cannot be levied on the act of

serving food at a restaurant. That is the tax in this case imposed

by the Parliament. There could be a sale during the course of

rendering of service at a restaurant and therefore, a sales tax

could be imposed by the State Legislature. So long as there is no


prohibition against imposition of service tax on the services

rendered, then it must be held that the Parliament is competent

to impose a service tax in question.

22. In regard to the judgment in Federation of Hotel & Restaurant

Assn. of India (2016) 94 VST 500 (Delhi), it related to the

constitutional validity of Section 65 (105) (zzzzv) of the Finance

Act, 1994 whereby the provision to any person by a restaurant,

by having the facility of air-conditioning in any pat of its

establishment serving food or beverage, including alcoholic

beverages or both, in its premises was made amenable to

service tax. Also under challenge was the constitutional validity

of Section 65 (105) (zzzzw) of the Finance Act whereby the

provision by a hotel, inn, guest house, club or camp-site by

whatever name called to any provision, accommodation for a

continuous period of less than three months was made

amenable to service tax.

23.

It is important to note that in many of the above judgments, the

issue under challenge was the imposition of service tax on food

and beverages items served in hotels and restaurants. The issue

of levy of Sales Tax on these items was elaborately and

exclusively dealt in by the Constitution Bench of the Hon'ble

Supreme Court in the case of M/S. K. Damodarasamy Naidu &

Bros. Vs. The State of Tamil Nadu & Anr. [2000] 117 STC 1 (SC)

and the Hon'ble Supreme Court has categorically held that the

state tax is leviable on the supply of food or drink and it is not

of relevance that the supply is by way of a service or as part of

a service and that restaurant owner must be taxed on full

amount of the goods so supplied. It has been held that when the

tax is on supply of food and drink, it is not of relevance that the

supply is by way of service or as part of a service. The price that

the customer pays for the supply of food in restaurant cannot

be split up though it may be a part of the service that he renders.

• il

24

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Appeal No. 17 to 20 I 2016 I Sirohi

Appeal No. 613 to 616I2O16ISirohi

The Supreme Court has considered the impact of the words of

sub-clause (f) of Clause (29A) of Article 366 in that judgment.

The relevant para of this judgments is reproduced hereunder:

"9. The provisions of Sub-clause U) of Clause (29A) of Article 366

need to be analysed. Sub-clause U) permits the States to impose

a tax on the supply of food and drink. The supply can be by way

of a service or as part of a service or it can be in any other

manner whatsoever. The supply or service can be for cash or

deferred payment or other valuable consideration. The words of

Sub-clause (i) have found place in the Sales Tax Acts of most

States and, as we have seen, they have been used in the said

Tamil Nadu Act. The tax, therefore, is on the supply of food or

drink and it is not of relevance that the supply is by way of a

service or as part of a service. In our view, therefore, the price

that the customer pays for the supply of food in a restaurant

cannot be split up as suggested by learned Counsel. The supply

of food by the restaurant owner to the customer, though it may

be a part of the service that he renders by providing good

furniture, furnishing and fixtures, linen, crockery and cutlery,

music, a dance floor and a floor show, is what is the subject of

the levy. The patron of a fancy restaurant who orders a plate of

cheese sandwiches whose price is shown to be Rs. 50 on the bill

of fare knows very well that the innate cost of the bread, butter,

mustard and cheese in the plate is very much less, but he orders

it all the same. He pays Rs. 50 for its supply and it is on Rs. 50

that the restaurant owner must be taxed."

The Hont ble Kerala High Court in the matter of Kerala Classified

Hotels and Resorts Association Vs. Union of India (2013) 64

VST 462 (Ker) has followed the above mentioned judgment of

the Constitution Bench of the Hon'ble Supreme Court and held

as under:

"19. Therefore it can be seen from Article 366(29-A)(f) that

service is also included in the sale of goods. If the constitution

permits sale of goods during service as taxable necessarily Entry

54 has to be read, giving the meaning of sale of goods as stated

in the Constitution. If read in that fashion, necessarily service

forms part of sale of goods and State Government alone will

have the legislative competence to enact the law imposing a tax

on the service element forming part of sale of goods as well,

which they have apparently imposed. I am supported to take

Appeal No. 17 to 20 I 2016 I Sirohi Appeal No. 613 to 616/2016/Sirohi

this view in the light of the Constitution Bench judgment in K.

Damodarasamy Naidu (supra)."

26. On careful consideration and study with utmost respect, of the

aforesaid judgments of the Hon'ble Supreme Court as well as

various Hon'ble High Courts, we find that the judgment of the

Constitution bench of the Hon'ble Supreme Court in the case of

K. DamodaraSamy Naidu (supra) and that of the Hon'ble Kerala

High Court in the matter of Kerala Classified Hotels and Resorts

Association Vs. Union of India (supra) have elaborately dealt

the issue of taxation powers of the states on supply of the food

and beverages in a restaurant or hotel, and that too in favour of

the States. Since the present issue before us is only incidental or

ancillary to the main issue, therefore, these two judgments are

followed and relied upon by us.

27. So, after the judgment of K. DamodaraSamy Naidu & Bros

(supra), this issue stands confirmed that the States are

empowered to levy tax on whole consideration of food and

beverages as served to its customers. Now the question before

us to decide is, as to whether the service tax as charged in the

invoices of food and beverages supplied by the assessee would

form part of the sale price or not. In this regard, the definition

of the term 'sale price' as given under Section 2(36) of the RVAT

Act leaves no ambiguity, whatsoever, regarding inclusion of any

statutory levy in the sale price. For ready reference the said

definition is as under:

(36) "sale price" means the amount paid or payable to a

dealer as consideration for the sale of any goods less any

sum allowed by way of any kind of discount or rebate

according to the practice normally prevailing in the trade,

but inclusive of any statutory levy or any sum charged for

anything done by the dealer in respect of the goods or

services rendered at the time of or before the delivery

thereof, except the tax imposed under this Act;

Explanation I. - In the case of a sale by hire purchase

agreement, the prevailing market price of the goods on

13

Appeal No. 17 to 20 /2016 I SirQhi Appeal No. 613 to 616/2016/Sirohi

the date on which such goods are delivered to the buyer

under such agreement, shall be deemed to be the safe

price of such goods; Explanation II. - Cash or trade discount at the time of safe

as evident from the invoice shall be excluded from the sale

price but any ex post facto grant of discounts or incentives

or rebates or rewards and the like shall not be excluded;

Explanation lii. - Where according to the terms of a

contract, the cost of freight and other expenses in respect

of the transportation of goods are incurred by the dealer

for or on behalf of the buyer, such cost of freight and other

expenses shall not be included in the sale price, if charged

separately in the invoice;"

28. Since the main issue relating to taxing of the service component

in supply of food and beverages under the State law has been

emphatically decided by the Hon'ble Supreme Court in favour of

the States by the judgment in K. DamodaraSamY Naidu's case,

so that issue is no more res-integra. The issue at hand is

essentially an incidental and ancillary to the main issue as

decided in K. DamodarasamY Naidu's case, therefore, in light of

the specific provision as contained in the definition of 'sale price'

any statutory levy, which by natural corollary includes service

tax as well, shall constitute a part of the sale price.

29. In light of the above discussion, we are of the considered view

that since the VAT is leviable on whole value the food and

beverages as supplied by the assesSee and the definition of 'sale

price' includes any statutory levy or any sum charged for

anything done by the dealer in respect of the goods or services

rendered at the time of or before the delivery thereof, except

the tax imposed under the RVAT Act, therefore, the service tax

as charged for supply of food and beverages, shall be covered

under the definition of 'sale price' and resultantly exigible to

VAT.

14

Appeal No. 17 to 20 /2016 I Sirohi Appeal No. 613 to 616/2016/Sirohi

Find I

30. In light of the legal position as discussed and described above,

the reference to the Larger Bench is answered as follows:

i) the service tax as charged for supply of food and beverages

shall constitute a part of the sale price and the Value Added

Tax (VAT) is leviable on the value of the food and beverages

including the service tax.

ii) Accordingly, it is held that decision of the learned Single

Bench of the Tax Board in Appeal No. 2399-

2401/2012/Jodhpur: M/s Marudhar Hotel Pvt. Ltd. Vs

Assistant Commissioner, order dated 25.07.2017, has not

laid down a correct law.

31. The question as referred by the learned Single Bench is

answered as above and the appeals are sent back to the learned

Single Bench with the above decision, for disposal of the same.

32. Order pronounced.

(Omkar Singh Ashiya) (Madan La Malviya) (V. Srinivas)

Member Member Chairman

LI

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